DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR

Complaint No.69 of 2018

Date of Instt.19.02.2018

Date of Decision: 28.09.2021

Amit Jain S/o Sh.Sukh Pal Jain R/o H. No.1, Mohalla No.22, Jalandhar Cantt.

…….. Complainant

Versus

1. Usha International Limited, Registered Office: 19, Kasturba Gandhi Marg, New Delhi – 110001, Through its Managing Director

2. M/s Walaiti Ram Lal Chand, Chok Bhagat Singh, Jalandhar, through its Partner.

…..…Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Kuljit Singh (President)

Smt. Jyotsna (Member)

Sh. Jaswant Singh Dhillon (Member)

Present: Sh. A. K. Gupta, Adv. Counsel for the Complainant.

Sh. Rajneesh Khanna, Adv. Counsel for OP No.1.

OP No.2 exparte.

Order

Kuljit Singh(President)

1. The present complaint has been filed by complainant against the OPs on the averments that complainant had purchased a swing machine make Usha Dream Maker – 120 of OP-1 from OP-2 vide bill No.373 dated 20.02.2016 for Rs.28,300/-. Machine was having a warranty against all manufacturing defects upto two years. Soon after the purchase, the machine developed multiple defects in the form unequal stitching/mis stitching/thread breaking etc and ultimately stopped working, therefore, the complainant had to lodge complaint at OP service centre No.18001033111 by calling from his mobile No.86999-33099. Thereafter, executive of OPs visited at the shop of complainant and removed the defects. Though, at that time machine started working, but after few days the same defects appeared again. Therefore, complainant had to again lodge complaint with OPs and whole process was repeated, but the machine could not be made fully functional as the same defects were continued to be there. In this way complainant had to lodge frequent complaints to OP, which result in total breakdown of his work and loss of costly men hours. A brief list of complaints lodged by complainant during last quarter without satisfactory result are as under:

Lastly, OP executive visited the shop of complainant and after spending about four hours on the machine, declare that the machine cannot be repaired and has to be taken at service center and thereby took the machine him vide receipt No.486 dated 16.03.2017 with the assurance that the machine will be thoroughly checked at service center and all the defects will be removed by replacing the defective parts at company’s cost within 2-3 days. After repeated request the Ops lingering on the matter. On 27.03.2017, complainant again visited at OP’s service center and he was apprised that some of the internal parts of machine are not working, as such, they will have to be replaced with new one, hence, demanded Rs.11,964/- as costs of the parts to be replaced. However, on objection by complainant, OP refused to remove defects and/or return the machine. On refusal of Ops to repair/replace/return the machine the complainant was constrain in issue a legal notice through registered AD/speed post, instead served an illegal reply of said legal notice by changing their version qua of demand of repair cost, which was reduced to Rs.1964/- from 11964/-. Lastly, prayer has been made that the OPs be directed to refund the amount of machine i.e. Rs.28,300/- along with interest @18% p.a. and Rs.50,000/- claimed as compensation for harassment.

2. Upon notice OPs appeared through counsel but later on OP-2 has failed to file written version and ultimately OP-2 was proceeded against ex pate vide order dated 16.05.2018. Counsel for OPs has file written on behalf of OP-1 only and contested the complaint of the complainant by raising preliminary objections that is not maintainable; complaint is nothing but a bundle of lies and the same filed to harass the answering OP; the alleged defect in the sewing machine does not come under the preview of warranty. The terms and conditions of the warranty of alleged purchased sewing machine with regard to alleged defect is that: (a) if the sewing machine and its parts have not been services, maintained and operated in accordance to the printed instructions accompanying the machine.(b) For normal wear & tear, ageing effects or chipping, peeling off or any other damage to the printed plated, matalized or plastic parts. (c) The defects of fault has been caused through ignorance, accidents or negligence. (d) Attempts have been made by parties other thenUsha Shop/Authorized dealer/sub dealers to repair or services. (e) To needles, bobbins, bobbin case, shuttle, belt, foot, controller, bulb etc. On merits, purchase and warranty of machine is admitted. It is submitted that complainant has lodged a complaint in Sr. No. 1 to 4 and the engineer/mechanic of answering OP has pleased to remove the minor defects which were not the manufacturing defects as alleged by the complainant. It was the complainant who forced the answering OP to took the said machine to the service Centre of answering OP inspite of fact that the said machine was in a very good working condition and there was no defect in the said machine as alleged. Other averments of the complaint are denied and prayed for dismissal of complaint with cost.

3. In order to prove their respective versions, both the parties produced on the file their respective evidence.

4. Rejoinder not filed.

5. We have heard the learned counsel for the parties and have also gone through case file very carefully.

6. At the very outset, we would like to mention some of the facts about which is no dispute between the parties. The complainant purchased the sewing machine in dispute. There is also no dispute about the payment of machine. After a lapse of some period, OPs approached by complainant about the removal of defects which had developed in the machine and thereupon, the OP-1 deputed technician to rectify the defects in the machine. The said technician rectified the defects by adjusting machine but lateron it was again defected. It is also an admitted fact that the said machine was taken by the technician for its service centre for purpose of repair and the still the machine is lying in the custody of Ops. The main controversy between the parties is whether the aforesaid machine had some inherent basic manufacturing defect and further whether the defects occurred during the warranty period? The version of the complainant is that the said machine had some basic manufacturing defects as the defects occurred in it during its operation/working repeatedly and that he is entitled either to the replacement of said machine or the refund of the amount i.e. price of machine. Ld. Counsel drew the attention of this Commission towards the affidavit of complainant Ex.CW1/A and other documents. On the other hand, Ld. Counsel for appearing on behalf of OP-1 strongly opposed the version of the complainant that the machine in question had any basic inherent manufacturing defects and stated that the said machine remained in operation/working successfully without any error/defect in it for a long period and that the version of the complainant is not believeable and tenable in the absence of any report of the expert in support of his contention. Ld. Counsel further argued that there was no lapse on the part of OP-1 and OP-1 deputed their technician and engineers as and when the complainant approached them for the rectification of the defects in the machine. Regarding the custody of machine, the Ld. Counsel clarified that the said that the complainant not approached to delivery of machine.

7. We have observed that the machine in question working without any error some time from the date of its purchase but after that the machine got defect and the OPs sent their technician/expert for rectification of the defects in the machine on four times. Complainant approached Ops for repair of his machine and the said service center recorded noting on job order Ex.C-2 to the effect that machine is defected or not. After repair of the machine, the same was not handed over to complainant. Thus, virtually statement of complainant suffered through affidavit through Ex.CW1/A is fully believable that due to defect of machine had approached to OPs time and again for removal of the trouble in the machine. Despite that the trouble in the machine is persisting. Defect in the machine itself reflect that machine was defective. Therefore, statement of complainant through affidavit fully believable that due to inherent defect in the machine, the same is not working, despite repeated repairs. This complaint has been filed for replacement of the machine within warranty period. No one from external appearance will be able to detect the inherent manufacturing defects warranting replacement of machine.

8. In case titled as Hind Motor (I) Ltd & Anr. Tata Motors Vs Lakhbir Singh & another 1(2014) CPJ 120 (NC), it has been laid that in case inherent defect in vehicle requiring major repairs after short span of eight months, found, then the vehicle should to be replaced, due to deficiency in services. Same is the position in this case. So by applying the analogy of law laid down in the above said case, this complaint deserves to be allowed.

9. Consequently, this complaint is allowed with directions to OPs to deliver a new sewing machine of same model free to complainant without charging any cost from him. In the alternative OP No.1 through OP No.2 directed to return amount of Rs.28,300/- to complainant with interest @ 5% per annum from 20.02.2016 till realization. Amount of Rs.2,000/- allowed on account of mental harassment but Rs.3,000/- allowed as litigation expenses in favour of complainant and against OPs.

10. Entire compliance of above said order shall be made by OPs within a period of 45 days from the date of receipt of copy of this order.

11. Copies of the order be sent to the parties, as permissible, under the rules. This complaint could not be decided within stipulated time frame due to rush of work.

12. File be indexed and consigned to the record room after due compliance.

Announced in open Commission

28^th of September 2021

Kuljit Singh

(President)

Jyotsna

(Member)

Jaswant Singh Dhillon

(Member)